10/11/2016
DA 15-0696
Case Number: DA 15-0696
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 256
CITIZENS FOR A BETTER FLATHEAD,
a Montana nonprofit public benefit corporation,
Plaintiff and Appellant,
v.
BOARD OF COUNTY COMMISSIONERS
OF FLATHEAD COUNTY, a political subdivision
of the State of Montana and the governing body of
County of Flathead, acting by and through Dale W. Lauman,
Pamela J. Holmquist, and Calvin L. Scott,
Defendant and Appellee.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DV-12-1304(C)
Honorable Heidi Ulbricht, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
John F. Lacey, McGarvey, Heberling, Sullivan & Lacey, PC, Kalispell,
Montana
For Appellee:
Alan F. McCormick, Garlington, Lohn & Robinson, PLLP, Missoula,
Montana
Tara R. Fugina, Flathead County Attorney’s Office, Kalispell, Montana
Submitted on Briefs: June 29, 2016
Decided: October 11, 2016
Filed:
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Citizens for a Better Flathead (Citizens) appeals the District Court’s rejection of its
challenge to Flathead County’s 2012 Revised Growth Policy. Citizens asserts that both
the Flathead County Planning Board (Planning Board or Board) and the County
Commission (Commission) violated public rights protected by Montana’s constitution
and statutes when they developed the revised policy without adequate public
participation. Citizens also claims that the County failed to follow its own procedures for
amending the growth policy. We agree with the District Court that the alleged
irregularities do not invalidate the revised growth policy. Because the growth policy
lacks the force of law, we likewise affirm the District Court’s refusal to strike from it
what Citizens calls the “property rights trump card.”
¶2 We address Citizens’ claims in the following issues:
1. Whether the District Court abused its discretion in striking Citizens’ expert
report.
2. Whether the District Court erred in determining that the Commission complied
with the growth policy’s mandatory procedures for adopting revisions.
3. Whether the District Court erred in determining that the Commission allowed
meaningful public participation in the revision process.
4. Whether the District Court erred in determining that the Commission
adequately incorporated public comments into its decision-making process.
5. Whether the final clause in Part 6 of the revised growth policy survives
constitutional scrutiny.
2
PROCEDURAL AND FACTUAL BACKGROUND
¶3 The Commission adopted the original Flathead County Growth Policy in March
2007. The growth policy’s terms required the Planning Board to review the policy at
least every five years and to make recommendations to the Commission as to what
changes to the original policy, if any, it should adopt. In anticipation of the five-year
deadline, the Planning Board prepared a proposed “work plan” for the growth policy
update process and forwarded it to the Commission for consideration. On January 3,
2011, the Commission adopted a resolution requesting that the Planning Board update the
growth policy as proposed by the work plan.
¶4 Shortly after the Commission’s resolution, the Planning Board announced through
a press release that it was commencing a revision process. Over the next year, the
Planning Board held approximately twenty public workshops to solicit public comment
and to discuss revisions to the growth policy.
¶5 The Planning Board presented a “first final draft” of the revised growth policy at a
public hearing on February 15, 2012. Members of the public offered comments on the
draft. Over the next few months, the Planning Board held four additional public
workshops and continued to refine the draft policy.
¶6 The Planning Board released a “second final draft” in April 2012, and solicited
comments on this draft at another public hearing in June. The Planning Board discussed
these public comments at its next meeting. The Board voted to forward the policy to the
Commission for approval.
3
¶7 The Commission passed a resolution of intent to adopt the Planning Board’s
proposed revised growth policy and initiated a thirty-day public comment period. After
the comment period ended, the Commission held a meeting on October 12, 2012. At that
meeting, it approved the revised growth policy. The October meeting, along with all of
the Planning Board’s public workshops and hearings, was recorded onto DVD. The
Commission did not issue written findings of fact explaining its rationale for approving
the policy.
¶8 Citizens brought suit, claiming that the Commission’s adoption of the revised
growth policy violated Montana statutes, the Montana Constitution, and Flathead
County’s own procedures. In support of its claims, Citizens submitted an expert report of
Kathleen McMahon. The District Court granted the Commission’s motion to strike
McMahon’s report. Citizens and the Commission filed cross-motions for summary
judgment on the question whether the revised growth policy’s adoption complied with the
law. The District Court granted the Commission’s motion, reasoning that the growth
policy revision process did not violate any statutory, constitutional, or regulatory
provisions. Citizens appeals.
STANDARDS OF REVIEW
¶9 It is within a district court’s discretion to determine whether evidence is relevant
and admissible. State v. Hocevar, 2000 MT 157, ¶ 54, 300 Mont. 167, 7 P.3d 329.
District courts are vested with great latitude in ruling on the admissibility of expert
testimony. Hocevar, ¶ 54. Absent a showing of an abuse of discretion, we will not
overturn a district court’s determinations on evidentiary matters. Hocevar, ¶ 54.
4
¶10 We review de novo a district court’s ruling on summary judgment, applying the
criteria of M. R. Civ. P. 56(c)(3). Pilgeram v. GreenPoint Mortg. Funding, Inc.,
2013 MT 354, ¶ 9, 373 Mont. 1, 313 P.3d 839. We review a district court’s conclusions
of law to determine whether they are correct and its findings of fact to determine whether
they are clearly erroneous. Pilgeram, ¶ 9.
¶11 We review a governing body’s decision to amend or revise its growth policy—a
legislative act—for an abuse of discretion. North 93 Neighbors, Inc. v. Board of Cnty.
Comm’rs of Flathead Cnty., 2006 MT 132, ¶ 18, 332 Mont. 327, 137 P.3d 557.
¶12 This Court’s review of constitutional questions is plenary. Williams v. Bd. of
Cnty. Comm’rs, 2013 MT 243, ¶ 23, 371 Mont. 356, 308 P.3d 88.
DISCUSSION
¶13 1. Whether the District Court abused its discretion in striking Citizens’ expert
report.
¶14 Kathleen McMahon is a professional land-use planner. At Citizens’ request, she
reviewed the audio and video recordings of the Planning Board’s and the Commission’s
public meetings. She then prepared a report discussing the growth policy’s revisions and
the process employed in preparing and adopting those revisions. Citizens proffered her
report as evidence.
¶15 The District Court struck the report on a number of grounds, among which was
that it contained legal conclusions. Citizens argues that the report is admissible because
it served the primary purpose of assisting the trier of fact to understand the content of the
numerous recorded public workshops and hearings. Citizens alternatively argues that,
5
even if the District Court rightly identified certain portions of the report as inadmissible,
the remaining portions should have been admitted.
¶16 The McMahon report’s stated purposes include: (1) determining if the growth
policy revision process “followed requirements mandated by the Montana Code
Annotated (MCA) and the process for updates that is specified in the Flathead County
Growth Policy”; (2) reviewing key revisions to the growth policy to determine if they are
“consistent with the requirements of the MCA”; and (3) assessing whether the revision
process “provided meaningful public participation in accordance with the MCA and the
county’s own obligations.” The report analyzes whether the Commission’s and the
Planning Board’s activities conformed to the growth policy’s guidelines for revision and
complied with Montana statutory, constitutional, and case law.
¶17 Montana law permits testimony by experts “[i]f scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue.” M. R. Evid. 702. We have held, however, that “expert
opinion that states a legal conclusion or applies the law to the facts is inadmissible.”
Wicklund v. Sundheim, 2016 MT 62, ¶ 15, 383 Mont. 1, 367 P.3d 403 (citing Cartwright
v. Scheels All Sports, Inc., 2013 MT 158, ¶ 43, 370 Mont. 369, 310 P.3d 1080). “Legal
conclusions offered by an expert witness invade the province of the fact-finder, whose
duty it is to apply the law as given to the facts in the case.” Wicklund, ¶ 15 (citing Perdue
v. Gagnon Farms, Inc., 2003 MT 47, ¶ 28, 314 Mont. 303, 65 P.3d 570).
¶18 Rather than serving to “assist the trier of fact to understand the evidence or to
determine a fact in issue,” M. R. Evid. 702, the McMahon report primarily offers legal
6
conclusions. The report’s stated purposes include determining whether the revision
process met the legal requirements of Montana statutes and the procedural requirements
of the County’s growth policy. The report repeatedly applies the law to the
Commission’s and the Planning Board’s actions. By applying the law to the facts of this
case, the report impermissibly offers legal conclusions. See Wicklund, ¶ 15. We
therefore hold that the District Court did not abuse its discretion in striking this report.
See Hocevar, ¶ 54.
¶19 Similarly, we are unpersuaded by Citizens’ argument that the District Court erred
in excluding certain segments of the report that it argues are admissible, such as the
summary tables and descriptions of the DVD recordings. These tables and descriptions
mainly provided background information to support the report’s legal conclusions. The
District Court reasonably determined, within its broad discretion, that these portions of
the report had little relevance independent of their relation to the report’s legal
conclusions. The court did not abuse its discretion in striking these segments of the
report.
¶20 2. Whether the District Court erred in determining that the Commission complied
with the growth policy’s mandatory procedures for adopting revisions.
¶21 The District Court held that the Planning Board and the Commission properly
observed the growth policy’s revision procedures. It concluded that the Planning Board
did not exceed its broad scope of review in revising the policy, that the revisions to the
policy constituted “updates” rather than “amendments,” and that the requirement to
prepare findings of fact did not apply to the Commission or to the Planning Board.
7
¶22 Citizens argues that the Planning Board exceeded the scope of review defined in
the original work plan and that the revisions constituted “amendments” to the growth
policy rather than “updates.” The Planning Board and the Commission, Citizens
maintains, failed to comply with the original growth policy’s requirements for amending
the policy when they neglected to prepare written findings of fact. In the alternative,
Citizens argues that even if the revisions to the policy constituted “updates,” the Planning
Board and the Commission failed to meet the requirements for updating the policy by not
holding meetings “throughout” Flathead County.
¶23 The original growth policy described the requirements for updating or amending
the policy. Chapter 9, Part 6, under the heading, “Growth Policy Update,” provided in
relevant part:
At a minimum of every five years, the Planning Board shall prepare a draft
revised Growth Policy . . . Goals and policies should be revised as needed
to accurately reflect the present day needs of Flathead County . . . Public
meetings shall be held throughout Flathead County to present revisions to
the public and gather public opinion.
¶24 Chapter 9, Part 7, titled, “Growth Policy Amendments,” stated as follows:
Various events could potentially create a situation where certain goals,
policies and/or implementation techniques are no longer adequate or
appropriate. If this occurs prior to the regularly scheduled updates, the
Flathead County Growth Policy may be amended . . . Amendments shall be
subject to . . . preparation of findings of fact.
¶25 Montana law requires that “a governing body ‘must be guided by and give
consideration to’ its growth policy.” North 93 Neighbors, Inc., ¶ 22 (quoting § 76-1-605,
MCA). We have held that a governing body “must substantially comply with an adopted
growth policy.” Heffernan v. Missoula City Council, 2011 MT 91, ¶ 77, 360 Mont. 207,
8
255 P.3d 80; North 93 Neighbors, Inc., ¶ 23. Chapter 9, Part 7 of the growth policy
defines amendments as changes to the policy that occur “prior to the regularly scheduled
updates.” By contrast, Part 6 implies that updates are revisions to the growth policy that
occur routinely—every five years at minimum.
¶26 The record shows that the revision process began with discussions of a Planning
Board subcommittee in the fall of 2010, in anticipation of the April 2012 five-year
deadline. The Commission’s January 3, 2011 resolution—about four years after it
adopted the initial policy—called for an “update” of the growth policy. The Commission
approved the Planning Board’s proposed work plan at the same time. The work plan
stated a goal of “updating the Growth Policy by April 2012.” “Rather than a wholesale
update” of the growth policy, the work plan stated that “it would be most effective to
focus on specific areas of the growth policy in most need of updating or clarification
based on public input received as well as insight gleaned from working with the [growth
policy] document over the past 4 years.” The plan named three areas of “main focus” for
the revision process, with two sub-topics under each.
¶27 The revised growth policy came about as part of a longstanding plan to update the
growth policy every five years. Both the resolution and the work plan called for an
update, and the resolution directed the Planning Board to consider “insight gleaned from
working with the document over the past 4 years.” The District Court correctly
determined that the revisions to the growth policy constituted an update within the
meaning of Chapter 9, Part 6.
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¶28 Next, we agree with the District Court that the Planning Board did not exceed its
scope of review as determined by the work plan. The flexible language of the work
plan’s phrases, quoted above, gave the Planning Board discretion and a wide-ranging
directive to revise the growth policy, rather than a rigid set of instructions. Furthermore,
Chapter 9, Part 6 of the growth policy states, “Goals and policies should be revised as
needed.” (Emphasis added.) Taken together, this provision and the work plan’s flexible
language gave the Planning Board a broad directive to revise the policy. In expanding
the revision process to include topics not specifically identified by the work plan, the
revision process did not violate this directive.
¶29 Finally, the Planning Board and the Commission complied with the requirements
for updating the growth policy. The policy calls for “preparation of findings of fact” only
when the governing body initiates amendments pursuant to Chapter 9, Part 7 of the
policy; thus, the absence of such findings here is immaterial. Rather, when a governing
body revises a growth policy, it “must equip reviewing courts with a record of the facts it
relied upon in making its decision to avoid judicial intrusion into matters committed to
the Board’s discretion.” North 93 Neighbors, Inc., ¶ 35. Citizens challenges the Board’s
processes, but it does not argue that any particular revisions are without support in the
administrative record. The only requirement for updating the policy that Citizens claims
the Commission and the Planning Board did not meet is the provision in Chapter 9, Part 6
that “[p]ublic meetings shall be held throughout Flathead County to present revisions to
the public and gather public opinion.” (Emphasis added.)
10
¶30 Citizens points out that the Commission and the Planning Board held meetings
only in Kalispell and not in additional locations throughout the county. While true, we
conclude that this failure alone does not require invalidating the revised growth policy.
The record does not suggest that limiting the meetings to Kalispell negatively affected the
Planning Board’s presentation of revisions to the public, or that the public was limited in
its ability to comment on the proposed changes. Citizens does not demonstrate how the
numerous public meetings and hearings the Board and the Commission convened should
be deemed substantial non-compliance with the growth policy on the single ground that
all of those meetings occurred in one part of the county. See Heffernan, ¶ 77.
¶31 In conclusion, the Planning Board and the Commission substantially complied
with the County’s procedural requirements for updating the growth policy. The District
Court’s holding on this issue was correct.
¶32 3. Whether the District Court erred in determining that the Commission allowed
meaningful public participation in the revision process.
¶33 In response to Citizens’ public participation challenge, the District Court
concluded that no statutory basis existed to invalidate the revised growth policy. In its
view, the public participation statutes afforded Citizens no avenue for relief because the
Planning Board was not an “agency” whose “decision” the law allowed the court to
invalidate. The court therefore declined to consider further whether the Planning Board
violated its public participation obligations.
¶34 Citizens asserts that the Planning Board failed to keep minutes of its meetings,
failed to produce a comprehensive document highlighting in one place all the changes
11
made to the original growth policy, and failed to give adequate notice after its
February 15, 2012 public hearing of what changes it was considering. These failures, in
Citizens’ view, amounted to statutory violations of Montana’s open meeting laws and
constitutional violations of the rights to know and participate.
¶35 The record shows that the Planning Board held over twenty public workshops at
which it solicited public comment on proposed revisions to the growth policy. The Board
held its first public hearing on February 15, 2012, to discuss the revised policy’s “first
final draft.” The Board then held four additional public workshops between February and
April to further revise the policy. On June 13, 2012, the Planning Board held a public
hearing to discuss the policy’s “second final draft.” It posted the “second final draft” to
the County’s website well in advance of this hearing. The Planning Board continued
discussion of this second draft at a public meeting the following month. Throughout the
revision process, the Planning Board gave notice of the times, dates, locations, and
agendas of its public workshops and hearings.
¶36 All of the Planning Board’s public workshops and hearings were recorded onto
DVD. The DVDs did not include written logs to help viewers access the contents. The
Planning Board did not keep written minutes of its many public workshops, but it did
keep minutes of its public hearings on February 15 and June 13, 2012, and of its public
meeting in July 2012.
¶37 The Planning Board routinely posted “tracked-changes” versions of the growth
policy’s individual chapters to the County’s website during the revision process. Neither
12
the Planning Board nor the Commission, however, provided the public with a single,
comprehensive document identifying all of the proposed changes to the original policy.
¶38 The Commission entertained a thirty-day public comment period on the proposed
revised growth policy, and then held a public meeting on October 12, 2012, to discuss the
public comments received. At the beginning of the meeting, the Commissioners briefly
solicited oral public comments. The Commission kept minutes of this meeting and
recorded the entire meeting. At the conclusion of the public meeting, the Commission
voted to approve the revised growth policy.
¶39 Article II, Section 8, of the Montana Constitution provides, “The public has the
right to expect governmental agencies to afford such reasonable opportunity for citizen
participation in the operation of the agencies prior to the final decision as may be
provided by law.” We have held that “[t]he essential elements of public participation”
required by Article II, Section 8, are “notice and an opportunity to be heard.” Bitterroot
River Protective Ass’n v. Bitterroot Conservation Dist., 2008 MT 377, ¶ 21, 346 Mont.
507, 198 P.3d 219. The public’s right to participate requires more than simply an
“uninformed opportunity to speak.” Bryan v. Yellowstone Cnty. Elementary Sch. Dist.
No. 2, 2002 MT 264, ¶ 44, 312 Mont. 257, 60 P.3d 381. The right to know is protected
by Article II, Section 9, of the Constitution, which provides, “No person shall be deprived
of the right to examine documents or to observe the deliberations of all public bodies or
agencies of state government and its subdivisions.” We analyze Article II, Sections 8 and
9, as coextensive provisions. Bryan, ¶ 31.
13
¶40 The Legislature implemented these constitutional rights by enacting
§§ 2-3-101 to -221, MCA. Bryan, ¶ 24. The law requires that agencies “develop
procedures for permitting and encouraging” public participation and provide adequate
notice of their planned actions. Section 2-3-103(1)(a), MCA. It also requires that
agencies give the public a “reasonable opportunity to submit data, views, or arguments.”
Section 2-3-111, MCA. Meetings of “public or governmental bodies [or] boards” must
be open to the public. Section 2-3-203(1), MCA. The governmental bodies must either
keep minutes of their meetings or create audio recordings accompanied by logs or time
stamps. Section 2-3-212(1), (3), MCA.
¶41 Courts may void agency decisions reached in violation of these statutory
provisions. Sections 2-3-114, -213, MCA. Montana law defines an agency as “any
board, bureau, commission, department, authority, or officer of the state or local
government authorized by law to make rules, determine contested cases, or enter into
contracts.” Section 2-3-102, MCA (emphasis added). Courts may not use §§ 2-3-114
or -213, MCA, to invalidate decisions made by public bodies that are not agencies, even
if those decisions violate the open meeting laws. Allen v. Lakeside Neighborhood
Planning Comm., 2013 MT 237, ¶ 31, 371 Mont. 310, 308 P.3d 956.
¶42 The Planning Board does not have the authority of an agency. Its duty is to
recommend that the Commission adopt, reject, or take some other action with regard to
the proposed revisions to the growth policy. Section § 76-1-603, MCA. The Planning
Board’s recommendations are not binding on the Commission. Allen, ¶ 28. Because the
14
Planning Board is not an agency as defined by law, the statutes do not authorize a court to
invalidate its actions. Allen, ¶ 31; §§ 2-3-114 and -213, MCA.
¶43 While the Commission is an “agency” under § 2-3-102, MCA, it did not violate
the open meeting laws. The Commission solicited public comment prior to and during its
October 12, 2012 meeting, and it kept minutes at the meeting. The Commission provided
the public with a “reasonable opportunity to submit data, views, or arguments.” Section
2-3-111, MCA.
¶44 Citizens nonetheless contends that the Planning Board and the Commission
deprived Citizens of the meaningful participation guaranteed by Article II, Sections 8 and
9, of the Montana Constitution. First, the record shows that the Planning Board gave
advance notice of its public workshops and hearings. The Planning Board provided
agendas for its public workshops between February and April 2012. The Commission
solicited public comment on its proposed adoption of the revised growth policy for a
thirty-day period prior to its October 12, 2012 meeting. These actions provided adequate
notice under the law to the public regarding the Planning Board’s and the Commission’s
deliberations. See Bitterroot, ¶ 21; § 2-3-103(1)(a), MCA.
¶45 Second, the Planning Board and the Commission allowed for public observation of
their deliberations. All of the workshops, hearings, and meetings were open to the public
and recorded onto publicly available DVDs. This fulfilled the constitutional obligation of
permitting public observation. See Mont. Const. art. II, § 9; § 2-3-203(1), MCA.
¶46 Third, and finally, the Planning Board and the Commission gave the public
reasonable opportunities to be heard during the deliberations, and these opportunities
15
amounted to more than uninformed opportunities to speak. See Bryan, ¶ 44. The
Planning Board held over twenty workshops and multiple hearings at which it solicited
public comments. The Board preceded each subsequent meeting with a release of
changes made since the last meeting, and it posted those changes to its website for
viewing. True, the County did not maintain a comprehensive document to illustrate all
changes proposed. But the Planning Board did post a full proposed revised growth policy
draft to the County’s website well before the June 13, 2012 public hearing. Finally, the
Board posted agendas of its workshops between its presentations of the first and second
“final drafts” of the revised policy.
¶47 The Commission entertained a thirty-day public comment period prior to adopting
the revised growth policy. Members of the public submitted 299 written comments in the
form of emails, letters, and postcards, and a petition containing 451 signatures. We
conclude that the public had ample reasonable opportunities through the workshops, the
hearings, the website materials, and the comment period to be informed and to be heard
by the Planning Board and the Commission. See Bitterroot, ¶ 21; Bryan, ¶ 44; § 2-3-111,
MCA.
¶48 The Planning Board and the Commission met the constitutional requirements of
Article II, Sections 8 and 9. They gave adequate notice of their deliberations, allowed the
public to observe the meetings, and gave the public sufficient opportunities to be
informed and heard. As such, neither the Commission nor the Planning Board infringed
on the public’s right to participate or right to know. For these reasons, we hold that the
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District Court did not err in determining that the Commission allowed for meaningful
public participation in the revision process.
¶49 Citizens takes issue with the complexity of the process and with the difficulty for
the public in keeping abreast of the specific revisions under consideration and in
following the details of the Planning Board’s deliberative process. The statute commands
a “reasonable opportunity” for public participation. Section 2-3-111, MCA. The court
cannot dictate process to government agencies administering programs and functions
within their authority. Instead, this Court’s role is limited to assessing whether the
Planning Board and the Commission fulfilled the obligations imposed by the Constitution
and related statutes. We conclude that they did.
¶50 4. Whether the District Court erred in determining that the Commission
adequately incorporated public comments into its decision-making process.
¶51 Citizens claims that the Commission, through its own actions and those of the
Planning Board, failed to consider public comments, to incorporate those comments into
the decision-making process, to summarize the comments, or to explain how the
comments factored into its decision, in violation of the law. The District Court disagreed,
reasoning that the Planning Board and the Commission received many public comments
and that the record showed that these comments had at least some influence on their
decision-making processes.
¶52 At the February 15, 2012 public hearing, Flathead County residents commented on
the “first final draft” of the proposed revised version of the growth policy. The Planning
Board then discussed those comments. The Planning Board’s four public workshops in
17
the ensuing months included discussion of public input. The minutes of the Board’s June
2012 public hearing reflect that the Board made revisions to the growth policy in the
months following the February 2012 hearing based on its consideration of the public
input received and on the Board’s own discussions.
¶53 Members of the public offered additional comments on the revised growth
policy’s “second final draft” at the Planning Board’s June 2012 public hearing. When the
Planning Board met the next month, each member discussed his or her thoughts on the
public comments received at the June hearing.
¶54 Under Montana law, the Planning Board was required to consider “the
recommendations and suggestions elicited at the public hearing[s],” § 76-1-603, MCA,
and to “incorporate those comments into its decision-making process,” North 93
Neighbors, Inc., ¶ 36. Here, the Planning Board’s consideration and incorporation of
public comment met the law’s requirements. Board members discussed the public
comments offered at the two public hearings. In the months following the February 15,
2012 hearing, the Board based its many revisions to the policy on public comments
received at the workshops and on the Board’s own discussions at those workshops. This
record establishes that the Planning Board considered “the recommendations and
suggestions elicited at the public hearing[s]” and “incorporate[d] those comments into its
decision-making process.” Section 76-1-603, MCA; North 93 Neighbors, Inc., ¶ 36. The
law does not require that specific public comment be incorporated into the final decision,
only into the process.
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¶55 The Commission also was required to consider and incorporate public comments
into its process. Section 76-1-603, MCA; North 93 Neighbors, Inc., ¶ 36. In addition, by
County resolution, the Commission was required to “summarize” the comments received
and to “explain” how the comments influenced its decision to approve the revised policy.
Flathead County Resolution No. 2129, March 18, 2008 (stating that the “scope and
format of such summarization and explanation may vary as appropriate for the type of
decision and extent of public comment”). This resolution provides no specific
requirement as to the form of the Commission’s summary and explanation.
¶56 The Commission met on October 12, 2012, to discuss the public comments
received as to the Commission’s intent to adopt the revised growth policy. At that
meeting, the Commissioners briefly summarized the comments and explained how the
comments factored into their decisions. Commissioner Holmquist summarized the
comments for and against the revised growth policy, and explained how the comments
opposing the policy factored into her decision. Commissioner Scott and Chairman
Lauman addressed specific issues with the growth policy that the public comments
raised, including traffic, water quality, planning and zoning, and development along
highways. We conclude that these discussions fulfilled the Commission’s obligations to
consider and incorporate public comments into its process, to summarize the comments,
and to explain how the comments influenced its decision to adopt the revised growth
policy.
¶57 Citizens argues that the Planning Board and the Commission could not possibly
have considered all of the public comments from the revision process, given the volume
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of comments received. The Planning Board members and Commissioners stated,
however, that each had reviewed the public comments. It is not within this Court’s
purview to determine how sincere these county officials were in their assertions that they
had reviewed all public comment or to assess how the comments factored into their
decisions. The scope of our review is to determine, based on the record, whether the
Planning Board and the Commission “consider[ed] the public comments and
incorporate[d] those comments” into their decision-making processes. North 93
Neighbors, Inc., ¶ 36. The record shows that they did. We therefore uphold the District
Court’s determination on this issue.
¶58 5. Whether the final clause in Part 6 of the revised growth policy survives
constitutional scrutiny.
¶59 Citizens claims that a clause in Part 6 of the revised growth policy, which it refers
to as the “property rights trump card,” is unconstitutionally vague and that it violates
Citizens’ Article II, Section 3, constitutional right to a clean and healthful environment.
Part 6 emphasizes the predominance of individual property rights and lists requirements
that a growth policy must meet if it attempts to regulate the use of private property. It
concludes with the following sentence: “In the event of a conflict between the provisions
in this part and any other provision in this Growth Policy and [its] amendments, this part
shall control.” The District Court held that this clause did not violate the Constitution. It
reasoned that the growth policy was not regulatory in nature, that the clause was not
inherently vague, and that it did not encourage a violation of the constitutional right to a
clean and healthful environment.
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¶60 Montana law provides that “a growth policy is not a regulatory document and does
not confer any authority to regulate that is not otherwise specifically authorized by law or
regulations adopted pursuant to the law.” Section 76-1-605(2)(a), MCA. Courts may
strike down regulations as unconstitutional if they permit government action that
conflicts with the Constitution. Because a growth policy “is not a regulatory document
and does not confer any authority to regulate that is not otherwise specifically authorized
by law,” it is incapable of authorizing a governing body to take action that would conflict
with the Constitution. Section 76-1-605(2)(a), MCA.
¶61 The revised growth policy, including the final clause of Part 6, provides guidance
to the local governing body. The growth policy constitutes “the preeminent planning
tool” for land use planning. Heffernan, ¶ 76. But it “cannot be applied in a ‘regulatory’
fashion,” Heffernan, ¶ 78 (quoting § 76-1-605(2)(a), MCA), and thus bestows the
Commission with no authority that it does not have under a statute or regulation. The
clause cannot require Flathead County to take any action, much less any action that
conflicts with the Constitution. We hold that, because this clause lacks the force of law,
it cannot “trump” Citizens’ constitutional rights. We agree with the District Court’s
conclusion that this clause is not unconstitutional.
CONCLUSION
¶62 The alleged procedural shortcomings in Flathead County’s process for updating its
growth policy do not rise to the level of either a statutory or a constitutional violation.
The County’s process was adequate to meet its obligations under the law. We affirm the
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District Court’s order and its decision to award summary judgment to the Commission on
the validity of the County’s 2012 revised growth policy.
/S/ BETH BAKER
We Concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ JIM RICE
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